The opinion of the court was delivered by: GANEY
This is a libel on behalf of three seamen -- the fourth seaman, Albert A. Stephany, having been granted a severance -- Cecil H. Miller, a fireman, Priedo Rommell, boatswain, and James H. Williams, second cook and baker, all members of the Steamship "Cripple Creek" owned and operated by Lykes Steamship Company, for wages and damages due to wrongful discharge, for wrongfully retaining and converting all clothing, effects and seamen papers and for failure to make payment of wages to the end of the voyage under Sec. 4529 of the Revised Statutes, 46 U.S.C.A. § 596.
At the close of the libellants' case the respondent moved to dismiss the libel alleging that the libellants had made out no cause of action. In order to expedite the matter, since obtaining the presence of seamen in court at the present time is exceedingly difficult, the motion was taken under advisement, and the respondent then offered its defense. It is the duty of the court to first dispose of the respondent's motion to dismiss and this is done by denying the same, for the reason that viewing the testimony in a light most favorable to the libellants, this court cannot say as a matter of law that the action should be dismissed. Accordingly, the matter is disposed of on the merits. With respect thereto the court makes the following:
2. The Steamship "Cripple Creek" arrived at the Port of Honolulu, Hawaii, June 2, 1940, at or about 8 o'clock A.M. for the purpose of taking on fuel only.
3. Libellants were permitted to draw Five Dollars ($5) on their wages and to go ashore until 4:30 P.M. on that same day, pursuant to a sailing notice posted at the head of the gangway of the ship, showing the sailing time of the vessel to be 4:30 P.M. June 2, 1940.
4. Libellants saw the sailing notice, and left ship to go ashore and had not returned at 4:30 P.M., sailing time.
5. At 4:30 P.M. June 2, 1940, sailing time, the libellants not being aboard ship, the Captain instructed the Chief Mate to go ashore in search of the libellants, which he did, and returned at 5 P.M. without having been able to find them.
6. The Steamship "Cripple Creek" waited at the dock until 5:26 P.M., when it was forced to leave its berth in order to make room for another ship, and sailed out into the harbor.
7. The libellants arrived at the dock in a taxicab at about one hour after sailing time and observed the Steamship "Cripple Creek" out in the harbor.
8. An agent of the respondent was on the dock at the time of their arrival and volunteered to take libellants, as well as several other members of the crew, who had left the ship, and were on the dock at the time of their arrival, out to the vessel in a launch, to which they agreed and they arrived at the vessel in about one-half hour.
9. Arriving at the Steamship "Cripple Creek", a spokesman from the launch went aboard the Steamship "Cripple Creek" and advised the Captain that the men would come aboard if he did not prefer any charges against them, but the Captain would make no promise about logging them, and said further that the launch would have to be paid for. The spokesman returned to the launch, and after talk of arbitration, it left the side of the vessel and returned to port.
10. The reason that the libellants did not board the ship at the time they were along side of the vessel was that they felt they could compel the Captain to arbitrate the matter before the United States Shipping Commissioner in ...